As it takes a long time to get Greencard in many categories, many dependent children may age-out while waiting and are no longer be eligible as dependents to get a green card. Unmarried Son or Daughter of LPR (F2B) Becomes Unmarried Son or Daughter of U.S. Citizen (F1). This may be beneficial because . For DVs, the date a visa is considered available is the first day on which the principal applicants rank number is current for visa processing. An applicant is listed as a derivative on an approved Form I-140 filed by their parents employer. CSPA age is calculated by subtracting the number of days the Form I-130 (or Form I-360 for VAWA self-petitioners and derivatives) was pending from the applicants age on the date an immigrant visa becomes available to the applicant. How can I request NVC to consider my son's CSPA age and grant him immigrant visa as well? Citizenship and Immigration Services (USCIS) is updating policy guidance in the USCIS Policy Manual regarding the Child Status Protection Act (CSPA), to include how USCIS calculates age under certain contexts and what actions satisfy the sought to acquire requirement. Since your age freezes on the date your stepparent files the Form I-130, you may benefit from the CSPA as long as your stepparent files the Form I-130 before your 21st birthday. Based on the CSPA rule, she should be still qualified for F2A. U.S. While K nonimmigrants are not covered under CSPA, K-2 and K-4 nonimmigrants may benefit from CSPA under certain limited circumstances. However, we called NVC and was told that she was moved to F2B. [20] Instead of freezing the age of the applicant on the filing date, as is the case with IRs, CSPA provides a formula by which the preference applicants CSPA age is calculated in a manner that takes into account the amount of time the qualifying petition was pending. If the applicants CSPA age is over 21 at the time of subsequent visa availability, the applicant is no longer eligible for CSPA coverage. The date of visa availability is the date of petition approval or the first day of the month of the DOS Visa Bulletin that indicates availability for that immigrant preference category and priority date according to the chart USCIS designated that month for accepting and processing the adjustment of status application, whichever is later. CSPA provides that the age of the child will be frozen in each of the following 3 circumstances: 1) If the US citizen parent submits an I-130 visa petition for a child prior to his or her 21st birthday. This is referred to as the sought to acquire requirement. For more information about CSPA, see the following: An official website of the U.S. Department of Homeland Security, An official website of the United States government, To protect your privacy, please do not include any personal information in your feedback. This technical update replaces all instances of the term foreign national with alien throughout the Policy Manual as used to refer to a person who meets the definition provided in INA 101(a)(3) [any person not a citizen or national of the United States]. [45], USCIS also considers a written request to transfer the underlying basis of the adjustment of status application to satisfy the sought to acquire requirement if the request is received within 1 year of an immigrant visa becoming available in the new preference category. [^ 9] Pending time may also include administrative review, such as motions and appeals, but does not include consular returns. In order for a family-sponsored or employment-based preference or DV applicant to qualify for CSPA, the applicant must meet the following requirements: For family-sponsored (including VAWA)[26] and employment-based preference and DV categories, an adjustment applicants CSPA age is calculated by subtracting the number of days the petition on which the applicant seeks to adjust status was pending (pending time) from the applicants age on the date the immigrant visa becomes available to the applicant (age at time of visa availability). Citizenship and Immigration Services (USCIS) is updating and incorporating relevant Adjudicators Field Manual (AFM) content into the USCIS Policy Manual. CHILD CITIZENSHIP ACT (CCA) If an American Citizen files an immigration petition for a child that is about to reach the age of 18, NVC sends the case to Post with an EXPEDITED . For example, the law allows unmarried children of U.S. citizens to remain immediate relatives if they are under 21 when the I-130 petition is filed. From the date of visa availability, and provided that the visa remains available for a continuous 1-year period, the applicant has 1 year to fulfill the sought to acquire requirement. When considering a claim of extraordinary circumstances, the officer should weigh the totality of the circumstances and the connection between the circumstances presented and the failure to meet the sought to acquire requirement within the 1-year period, as well as the reasonableness of the delay. Quote Tweet #9 01-15-2003, 12:35 AM Hello Everybody, Regarding "Child Status protection act" (CSPA) On "Retention of priorty of date" in F4- F3 categories. The following table outlines immigrant categories covered by CSPA, methods by which CSPA age is calculated, whether the sought to acquire requirement applies, and references to legal authorities and additional guidance. The employer rescinds the parents job offer, but the parent receives a job offer from a second employer. Motions to Reopen Following Matter of O. Vazquez. The CSPA went into effect on August 6, 2002. For derivative asylees, an adjustment applicants CSPA age is his or her age on the date the principal applicants Form I-589 is filed. For more information, see Part F, Special Immigrant-Based (EB-4) Adjustment [7 USCIS-PM F]. [3] CSPA does not alter this definition. L. 106-386 (PDF) (October 28, 2000). [19], CSPA applies differently to family-sponsored and employment-based preference and DV adjustment applicants than it does to refugee, asylee, and IR adjustment applicants. Paying the immigrant visa fee to the DOS; For refugee and asylee adjustment of status (Green Card), see, For family and employment preference and Diversity Visa immigrants, see. Limited CSPA Coverage for K-2 Nonimmigrants. Furthermore, the fact of being or having been a child is common to all applicants seeking protection under the CSPA and does not constitute extraordinary circumstances. The second employer files a new Form I-140 for the parent, and the applicant is listed as a derivative on this second approved Form I-140. See Part M, Asylee Adjustment, Chapter 2, Eligibility Requirements, Section C, Derivative Asylee Continues to be the Spouse of Child of the Principal Asylee, Subsection 2, Derivative Asylees Ineligible for Adjustment of Status [7 USCIS-PM M.2 (C)(2)]. In order to calculate an adjustment applicants CSPA age according to the formula above, the officer must first determine the age at time of visa availability. For historical versions before June 11, 2021, navigate to the USCIS Policy Manual within the USCIS website at:https://archive.org, Select a date to view the historical version, An official website of the U.S. Department of Homeland Security, An official website of the United States government, Part R - Abandonment of Lawful Permanent Residence, POLICY ALERT - Age Calculation under Child Status Protection Act, POLICY ALERT - EB-5 Reform and Integrity Act of 2022, Technical Update - Adding References to the EB-5 Visa Program in Child Status Protection Act Guidance, Technical Update - Replacing the Term Alien, POLICY ALERT - Age and Sought to Acquire Requirement under Child Status Protection Act, POLICY ALERT - Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements Final Rule, Technical Update - Moving the Adjudicators Field Manual Content into the USCIS Policy Manual, Technical Update - Replacing the Term Foreign National, Technical Update - Child Status Protection Act, POLICY ALERT - Child Status Protection Act, POLICY ALERT - Adjustment of Status Policies and Procedures and 245(a) Adjustment, To protect your privacy, please do not include any personal information in your feedback. See Section G, Sought to Acquire Requirement [7 USCIS-PM A.7(G)] for detailed information. [32], Determining When an Applicant May File an Adjustment Application and When a Visa is Available for the CSPA Age Calculation. It is important to note that this NVC-generated assessment letter will not hold up the qualification of the case for appointment at post. [^ 15] See Part M, Asylee Adjustment, Chapter 2, Eligibility Requirements, Section C, Derivative Asylee Continues to be the Spouse or Child of the Principal Asylee [7 USCIS-PM M.2(C)]. (recent experience with CSPA). 7 USCIS-PM B - Part B - 245(a) Adjustment, 7 USCIS-PM L - Part L - Refugee Adjustment. U.S. [21] Furthermore, the applicants eligibility depends not only on the CSPA age calculation but also on whether the applicant sought to acquire lawful permanent residence within 1 year of visa availability.[22]. Age at Time of Visa Availability - Pending Time = CSPA Age. A written request to transfer the underlying basis of the adjustment of status application also will meet the sought to acquire requirement, if we receive the request within 1 year of an immigrant visa becoming available in the new preference category. For IRs and IR self-petitioners or derivatives under VAWA, a childs age is frozen on the date the Form I-130 or Form I-360 is filed, respectively. A visa is continuously available for accepting and processing an application for adjustment of status for a 1-year period if, during each month of that year, the applicant has a priority date that is earlier than the date for their country and category on the chart in the DOS Visa Bulletin designated by USCIS for such month. However, you must remain unmarried in order to qualify. Official websites use .gov The CSPA helps preserve the "under 21" age of many children who would otherwise have aged out under the prior law. The applicant must be unmarried at the time he or she seeks adjustment of status. 1 USCIS-PM B - Part B - Submission of Benefit Requests, 7 USCIS-PM A - Part A - Adjustment of Status Policies and Procedures, 7 USCIS-PM F - Part F - Special Immigrant-Based (EB-4) Adjustment, 7 USCIS-PM M - Part M - Asylee Adjustment, 11 USCIS-PM A - Part A - Secure Identity Documents Policies and Procedures. Child of LPR (F2A) Becomes Child of a U.S. Citizen (Immediate Relative). The applicant may file an untimely motion to reopen or reconsider without a filing fee if: Special rules apply in cases where an adjustment applicant would otherwise age out on or after August 6, 2002. In October 2020, USCIS designates the Dates for Filing chart of the DOS Visa Bulletin for use to apply for adjustment of status in the employment-based preference categories. [^ 36] See Chapter 6, Adjudicative Review, Section C, Verify Visa Availability, Subsection 5, Visa Retrogression [7 USCIS-PM A.6(C)(5)]. The applicant must have been under the age of 21 and unmarried at the time the qualifying Form I-590 was filed. The Child Status Protection Act (CSPA) was enacted in order to keep immigrant families intact despite family-based and employment-based waiting times which can be long. Therefore, it is always in the applicants best interest to apply for adjustment of status as soon as possible when a visa first becomes available according to the chart designated by USCIS so as to lock in the applicants CSPA age. HOW TO RECAPTURE/RETAIN AND UTILIZE PRIORITY DATES 4 HOW TO RECAPTURE/RETAIN AND UTILIZE PRIORITY DATES | FEBRUARY 2022 CSPA applies to both noncitizens abroad who are applying for an immigrant visa through the Department of State (DOS) and noncitizens physically present in the United States who are applying for adjustment of status through USCIS. For DVs, the qualifying petition is the DV Program electronic entry form. [^ 39] See INA 203(h)(1)(A). See Chapter 9, Death of Petitioner or Principal Beneficiary [7 USCIS-PM A.9] for more information. See AFM 21.2(e) (PDF, 1.82 MB), The Child Status Protection Act of 2002. See Subsection 4, Determining Age at Time of Visa Availability [7 USCIS-PM A.7(F)(4)]. The applicant is 21 years and 4 months old when USCIS considers an immigrant visa available. CSPA age is frozen on the date the Form I-130 is filed (or the Form I-360 is filed for VAWA self-petitioners and derivatives). * Got USCIS receipt notice on April 08, 2011. However, if your stepparent and your K-1 nonimmigrant parent did not marry within 90 days (a requirement for getting a Green Card based on K-1 and K-2 nonimmigrant status), your stepparent might choose to file a Form I-130 for you. See Part L, Refugee Adjustment, Chapter 2, Eligibility Requirements, Section F, Special Considerations for Refugee Adjustment of Status Applicants, Subsection 2, Child Status Protection Act Provisions [7 USCIS-PM L.2(F)(2)]. The historical versions are provided for research and reference purposes only. Therefore, the applicants CSPA age is under 21. A visa initially becomes available to the prospective applicant according to the Final Action Dates chart on March 1, 2020, which USCIS designated for use in that month. or NVC; pay the affidavit of support fee with the NVC; file the DS-260 . The applicants calculated CSPA age must be under 21 years old; The applicant must have sought to acquire lawful permanent residence within 1 year of visa availability, absent extraordinary circumstances. The approval notice will also show you which office approved your Form I-130. The derivative child does not have an available visa based on the Final Action Dates chart in December 2020, and cannot apply during that month. This technical update clarifies thatcertain child beneficiaries of family-sponsored immigrant visa petitions who are ineligible for the Child Status Protection Act may continue their adjustment of status application if the petition is automatically converted to an eligible category. 1 USCIS-PM - Volume 1 - General Policies and Procedures, 7 USCIS-PM - Volume 7 - Adjustment of Status, 9 USCIS-PM - Volume 9 - Waivers and Other Forms of Relief, 10 USCIS-PM - Volume 10 - Employment Authorization, 11 USCIS-PM - Volume 11 - Travel and Identity Documents, 12 USCIS-PM - Volume 12 - Citizenship and Naturalization. You will need the ten (10) digit barcode number from your DS-260 confirmation page to book your appointments. [^ 6] The CSPA protects a derivative refugee from aging out prior to his or her refugee admission, but such protection is not needed at the adjustment stage because a derivative refugee does not need to remain the spouse or child of the principal refugee in order to adjust status under INA 209. However, you may choose to opt out of the automatic conversion and stay in second preference classification (F2B) if the waiting time for the second preference visa is shorter than the waiting time for the first preference visa. See Section G, Sought to Acquire Requirement [7 USCIS-PM A.7(G)]. [^ 40] VAWA preference cases are subject to the sought to acquire requirement, but VAWA IRs are not. APPLICATION OF THE CHILD STATUS PROTECTION ACT TO THE CHILDREN OF U.S. CITIZEN PETITIONERS 2 APPLICATION OF THE CSPA TO THE CHILDREN OF U.S. CITIZEN PETITIONERS | DECEMBER 2018 B. Child's Age Frozen on the Date of the Parent's Naturalization The CSPA also amended Section 201 of the INA to provide that if a permanent resident parent who had filed a visa So, both you and your brother do qualify for CSPA, you need to write a letter to NVC stating that you and your brother may qualify for CSPA status so please review the situation, Once NVC reviews the case, they will send invoice for you and your brother. Certain provisions of the CSPA apply to some categories of immigrants but not others. In order to protect children from aging out of their cases at age 21, CSPA may extend the eligibility of the applicant, should the applicant meet the CSPA requirements. If you are an immediate relative, a VAWA self-petitioning abused spouse or child of a U.S. citizen, or a derivative child of a VAWA self-petitioning abused spouse or child of a U.S. citizen, your age is frozen on the date the Form I-130 or Form I-360 is filed. NVC will send another invoice for both of your child once the visa date/priority date confirmed that they are qualified for CSPA. [49], Impact of Visa Unavailability on the 1-Year Sought to Acquire Requirement. Chapter 8 - Inapplicability of Bars to Adjustment, Volume 1 - General Policies and Procedures, Volume 9 - Waivers and Other Forms of Relief, Volume 11 - Travel and Identity Documents, Volume 12 - Citizenship and Naturalization, Part A - Adjustment of Status Policies and Procedures, Part F - Special Immigrant-Based (EB-4) Adjustment, Part A - Secure Identity Documents Policies and Procedures, Volume 3 - Humanitarian Protection and Parole. Calculate your CSPA age as follows: 21 years and 4 months - 6 months = 20 years and 10 months. CSPA (Child Status Protection Act) Calculator. L. 107-56 (PDF), 115 Stat. However, a transfer of underlying basis request can also result in potential derivative beneficiaries become eligible to adjust status as a derivative because their calculated CSPA age based on the petition is under 21 years of age. [^ 43] See 9 FAM 502.1-1(D)(6)(a)(3), Sought to Acquire LPR Status Provision. B BigJoe5 Registered Users (C) Jul 26, 2011 However, if the qualifying underlying form was approved prior to the effective date, an applicant who applies for adjustment of status after the effective date may still qualify for CSPA coverage. CSPA age is frozen on the date the Form I-360 is filed or the date the Form I-130 is automatically converted to a widow(er)s Form I-360. Examples of extraordinary circumstances that may warrant a favorable exercise of discretion include, but are not limited to: Serious illness or mental or physical disability of the applicant during the 1-year period; Legal disability, such as instances where the adjustment applicant suffered from a mental impairment, during the 1-year period; Instances where a timely adjustment application was rejected by USCIS as improperly filed and was returned to the applicant for corrections where the deficiency was corrected and the application re-filed within a reasonable period thereafter; Death or serious illness or incapacity of the applicants attorney or legal representative or a member of the applicants immediate family; and. (CSPA), visa applicants can "opt out" of conversion to the F1 visa category and remain an F2B visa applicant. The derivative applicants CSPA age is calculated using the petition underlying the principal beneficiarys adjustment of status application, in other words, the second Form I-140. [^ 54] For more detailed guidance on CSPA applicability and VAWA, see INA 204(a)(1)(D)(i) and Age-Out Protections Afforded Battered Children Pursuant to The Child Status Protection Act and the Victims of Trafficking and Violence Protection Act (PDF, 104.96 KB), issued August 17, 2004. [^ 50] In Matter of O. Vazquez, the Board of Immigration Appeals (BIA) ruled that extraordinary circumstances could warrant the exercise of discretion to excuse an applicant who failed to meet the sought to acquire requirement during the 1-year period. USCIS employees should not rely on the historical versions for current laws, precedent decisions, policies, directives, guidance, and procedures. For information regarding implementation, see Appendix: 2020 Fee Rule Litigation Summary. CSPA does not change the requirement that the applicant must be unmarried in order to remain eligible for classification as a child for immigration purposes. [^ 10] See Matter of Avila-Perez (PDF), 24 I&N Dec. 78 (BIA 2007). CSPA age is calculated by subtracting the number of days the petition was pending from the applicants age on the date an immigrant visa becomes available to the applicant. Noncitizens must generally file motions to reopen within 30 days of the decision. The petition had been pending for three months before it was approved, so that period of time can be subtracted from the child's age. August 1, 2016 - February 1, 2016 = 6 months (or 182 days). [27] The formula for calculating CSPA age is as follows: Age at time of visa availability - Pending time = CSPA Age, While an applicant must file an adjustment application or otherwise seek lawful permanent resident status in order to benefit from CSPA, the date the applicant files an adjustment application is not relevant for the CSPA age calculation.[28]. [^ 35] USCIS typically designates one of the two charts within 1 week of the publication of the DOS Visa Bulletin. Note: If an applicant has multiple approved petitions, calculate the applicants CSPA age using the petition that forms the underlying basis for the adjustment of status application. Thinking the NVC was acting on the case, the family sat back and waited for further word. The historical versions linked below reflect the pertinent policy in effect on that date and dates reflect when updates occurred. Diversity immigrant visa (DV) derivatives; CSPA provisions vary based on the immigrant category of the applicant. To create an account, you will need your passport. If the petitioner of a pending or approved immediate relative spousal petition dies, their spouses Form I-130 automatically converts to a widow(er)s Form I-360. Such provisions and details regarding eligibility are described in the following subsections. The visa remains available to the prospective applicant for accepting and processing their application according to the Dates for Filing chart (designated by USCIS) for 4 months, that is, through the end of January 2021. For derivative refugees, an adjustment applicants CSPA age is his or her age on the date the principal applicants Form I-590 is filed. You (not your parent) should send a signed letter stating that you wish to opt out of the conversion from F2B to F1.
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